As Executor, your legal responsibilities will differ depending on whether there is a Will or not and what assets there are in the estate.
Executors are responsible for administering a deceased person’s estate, and this involves ensuring all debts are paid and the remaining assets are distributed to beneficiaries.
There is specific legal documentation required and a mandated order in which matters must be dealt with. For Executors who do not fulfil these obligations, there can be severe penalties. Rest assured, we are here to help Executors navigate a path through the complexity of deceased estate documentation.
Legal documentation
If the deceased person has a Will, Executors need to apply for a Grant of Probate. This is legal recognition of the Will and provides authorisation for the Executor to manage the estate as outlined in the Will. If there is no Will, the Executors need to apply for Letters of Administration, enabling a legal right to manage a deceased estate.
We are usually called upon to attend to applications for a Grant of Probate or Letters of Administration which can take between three to twelve weeks to pass through the Probate Registry to process. Our involvement can avoid unnecessary delays. Once the required document is granted, the Executor can then legally administer the estate.
There are some instances where it is not necessary to apply for Probate and we can help Executors identify this early in the process.
Managing expenses and estate debts
Taking personal responsibility for the expenses and debts of an estate is one of the most common areas of concern for Executors, but it does not need to be. We are experienced at facilitating the early release of funds from the deceased person’s bank account to enable expenses such as funeral costs and Probate filing fees (which vary depending on the complexity of the estate) to be paid from the estate. We recommend mail for the deceased person is re-directed to our office, so we can provide advice on how to manage various bills as they arise.
Some Wills make specific provision for payment to the Executor for carrying out their duties administering the estate and we are able to facilitate this payment. Even if there is no such provision in the Will, we can also assist an Executor to apply for a commission for the Executor’s time and effort (this is an amount of money to compensate the Executor for their time and trouble).
Mandated order of processes – Assets and debts
Assets: There are strict rules associated with searching for and collecting assets of the estate, and all assets must be disclosed to the court. Depending on the number and nature of assets, the Probate process can be complex and it is often better left to legal professionals to manage.
Debts: The Executor must pay estate debts in the following order, using the proceeds from the estate:
- Funeral expenses;
- Legal expenses;
- Statutory obligations (such as tax); and
- Other debts.
If the deceased person has more debts than assets, there is also a specific order of processes to follow. Personal belongings may be distributed according to the deceased’s wishes, however to meet outstanding debts, assets may need to be sold. The selling of assets must be performed with diligence, and usually as soon as practicable.
Breaches of duties
There are strict rules that an Executor must observe when administering an estate in order not to breach their duties. They must preserve, protect and administer an estate with diligence. A breach of duties occurs if an estate suffers from deliberate or negligent actions by the Executor. Any legal action will be taken against the Executor, not the estate. Breaches by an Executor can include:
- Misappropriation – when an Executor uses estate funds to pay for personal debts or fraudulently disposes of assets to make a profit;
- Maladministration – dealing with assets in a way that is different from that outlined in the Will (without the authority to do so); and/or
- Breach of trust – when the Executor fails to follow specific directions in the Will, makes a profit as Executor or undertakes unauthorised investments which cause a loss or use the estate funds for their own personal debts.
If you would like the peace of mind that comes from a clear path of action for managing a deceased estate, we encourage you to contact us for an obligation free appointment. Our team can outline the processes and documentation requirements and answer the many questions you may have.
The first step you need to take is to make a time to have a chat with a solicitor from Kelly Kelly Legal.
Our Estates Team has more than 30 years of experience helping Executors and families with clear and compassionate advice about the most appropriate way forward. Contact the team on 08 8664 1162 or email admin@kellykellylegal.com.au to arrange a confidential meeting today.
On a personal note…
You may be feeling overwhelmed or worried about how you will pay the deceased person’s bills while waiting for Probate to be granted. My team and I have successfully managed this process and alleviated this burden for many Executors. We are experienced and proficient in deceased estate processes, and this help can be life changing for Executors.
Kelly Morgan – Principal Solicitor
At Kelly Kelly Legal our ultimate goal is to deliver certainty by providing upfront estimates of fees (which, it is important to know, are paid from the estate, not by the Executor).
In our next article in this series we outline the final steps in completing your role as Executor of a deceased estate.
Disclaimer
The content in this publication and on our website is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. We attempt to ensure that the content is current but we do not guarantee its currency.
You should seek legal or other professional advice before relying on other content. Your use of this website or the receipt of this information does not create a solicitor-client relationship between you and Kelly Kelly Legal.
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